New dispositions with regard to filiation

Author:Dan Lupascu - Cristiana Mihaela Craciunescu
Position:Associated Professor, Ph.D., Law Faculty, 'Nicolae Titulescu' University, Bucharest, judge and president of the Bucharest Court of Appeal - Ph.D., judge and director of the National School of Clerks
Pages:174-190
SUMMARY

The new Romanian Civil Code1 is a milestone for the profound reform of our judiciary as regards the matter of private law relationships, on the grounds of valuating the national and international experience.2 The novelties are represented, mainly, by the review of certain legal institutions and promotion of new principles and solutions. On this backdrop, the regulation of family relationships... (see full summary)

 
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174 Lex ET Scientia. Juridical Series
LESIJ NO. XVIII, VOL. 1/2011
NEW DISPOSITIONS WITH REGARD TO FILIATION
Dan LUPAŞCU*
Cristiana Mihaela CRCIUNESCU**
Abstract
The new Romanian Civil Code1 is a milestone for the profound reform of our judiciary as
regards the matter of private law relationships, on the grounds of valuating the national and
international experience.2 The novelties are represented, mainly, by the review of certain legal
institutions and promotion of new principles and solutions. On this backdrop, the regulation of
family relationships also received a new face.The present task is devoted to highligh ting the
amendments interfered in the matter of filiation, by presenting the systematization method of legal
regulations and the critical analysis of its content.
Key words: filiation, paternity presumption, donor assisted human procreation, possession
of status, legal timeframe of conception
I. Introduction
Filiation, the subject of this paper represents an important landmark to all law systems as it
provides the rules that guarantee the child’s rights to know his/her parents and the duties of all
parents regarding the education and care for their own children.
The new Civil Code reiterates the existing rules but also provides for innovations and
settles the dispositions regarding filiation against the new issues imposed by the evolution of
Romanian society, doctrine and judicial practice. The protection of child’s rights and the best
interest of the child with regard to filiation remain a priority objective of the new regulation.
Considering both the importance and the innovation character of the regulation of filiation
issues, we feel that a systemic approach of the issues is not only necessary but also useful, having
in mind that there are few literary references to this subject.
We undertake to elaborate a general presentation of the new legal norms regarding filiation
both in terms of theory and practice.
II. General aspects regarding filiation
1. Definition of filiation
Filiation is the descendent relationship between a child and his parents.3
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* Associated Professor, Ph.D., Law Faculty, “Nicolae Titulescu” University, Bucharest, judge and president of the
Bucharest Court of Appeal (e-mail: stanciulescu.liviu@gmail.com). This study was supported by CNCSIS –
UEFISCSU, project number PNII – IDEI 860/2009 - cod CNCSIS ID-1094.
** Ph.D., judge and director of the National School of Clerks
1 Adopted by Law 287/2009, published in the Official Journal, Part I, no. 511 of 24 July 2009.
2 Sources of inspiration were mainly the legislation of: France, Italy, Netherlands, Spain and Canada – Province of
Quebec, and also a series of international regulations.
3 Please see: A. Ionaşcu, M. Mureşan, M.N. Costin, V. Ursa –“Filiation and protection of minors”, Editura „Dacia”,
Cluj – Napoca, 1980, page 14.
Dan Lupascu, Cristiana Mihaela Craciunescu
175
LESIJ NO. XVIII, VOL. 1/2011
It usually consists of a biological relationship resulted from conception and birth. In some
cases (assisted procreation, donor assisted procreation, unjustified application of the paternity
presumption and wrongful maternal or paternal acknowledgement), filiation does not entail a
biological relation.
2. Filiation reference
The new civil code regulates filiation in chapter II, Second Book, Title III ( art. 408 – 450),
structured in 3 sections, namely: Section 1- establishment of filiation: Section 2 –Donor assisted
procreation; Section 3 – Legal status of children .
III. Establishment of filiation
1. Means for establishing filiation
1.1. General aspects
Acknowledgement of filiation consists of the procedures that attest the legal fact or act
proving the descendent relationship between a child and his parents.
Establishment of filiation is rather different considered the mother’s or the father’s side in
questions.
The new legal norms maintain the existing legal provisions regarding the acknowledgement
of filiation4.
Thus, maternal filiation is the result of giving birth to the child, which applies both to
marriage filiation and to out of wedlock filiation. This means that maternal filiation implies of
proof of the following elements: a) the mother gave birth to the child; b) identity between the born
child and that whose filiation is in question; c) proof of marriage (only in the case of marriage
filiation).
In cases strictly provided for, maternal filiation is established by acknowledgement and
court decision.
As regards parental filiation, it can be results out of application of the presumptions of
paternity. In these cases indivisibility arises in the sense that if maternity filiation is established,
the paternal filiation is not questionable.5
Paternal filiation for the child born out of wedlock is established through acknowledgement
and court decision6.
In order to produce legal effects, filiation must be proven, as prescribed by law. As a rule,
civil status is proven with acts produced by the civil service officers and the civil office certificates
handed to the parties. Thus, proof of filiation is made through the act of birth7 of the respective
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4 Please see Family Code ( Law no. 4/1953) republished in the Official Bulletin no. 13/ 18.04.1956, as
subsequently amended and modified.
5 The attestation of paternity for the child born inside marriage through the paternity presumption is embraced by
all legal systems, as an application of the principle „pater est quem nuptiae demonstrant” (Ingeborg Schwenzer
(editor) – Tensions Between Legal, Biological and Social Conceptions of Parentage, Ed. Intersentia, Antwerpen-
Oxford, 2007, page 5).
6 According to article. 3 of the European Convention of the legal status of children born out of wedlock, Strasbourg,
15th of October 1975, ratified by Romanian through the Law no. 101/1992, published in the Official Monitor, no.
243 /10.09.1992: „ Paternal filiation of all children born out of wedlock may be acknowledged or attested through
voluntary acknowledgment or court decision.
7 In the sense that the birth act represents, by excellence the ultimate proof of birth please see: C. Hamangiu, I.
Rosetti – Blnescu, Al. Bicoianu –Romanian Civil law Treatise, Editura „Academiei”, Colecia „Restitutio”,
Bucureşti, 1997, Vol. I, page. 285.

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